Herbert Hay v. UTMB, et al
UNPUBLISHED OPINION FILED. [15-20725 Affirmed in Part and Dismissed for Lack of Jurisdiction in Part] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 05/30/2017 [15-20725]
Date Filed: 05/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 9, 2017
Lyle W. Cayce
HERBERT DARRELL HAY, also known as Michael Darnell Noe,
UNIVERSITY OF TEXAS MEDICAL BRANCH, in their official capacity only;
TEXAS BOARD OF CRIMINAL JUSTICE, in their official capacity only; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTION
DIVISION, in their official capacity only; BRYAN COLLIER, EXECUTIVE
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, only in his official
capacity; RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, only in his official
capacity; OWEN MURRAY, Director for University of Texas Medical Branch
medical services, only in his official capacity; ROBERTO HERRERA, Head
Warden of the Pack I Facility, in his individual and official capacities; FAUSTO
AVILA, Facilities Physician and Director of Medical Services at the Pack Facility,
in his individual and official capacities; SARA ABKE, University of Texas Medical
Branch Senior Practice Manager, in her individual and official capacities;
SHARON LOCKRIDGE, Nurse Practitioner, in her individual and official
capacities; FUNMILAYO IBIROLKO, Registered Nurse for University of Texas
Medical Branch and a night nurse, in her individual and official capacities; JOHN
ALLEN, Pack I Unit Maintenance Officer, in his individual and official capacities;
D. WHITE, Pack I Unit Maintenance Officer, in his individual and official
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-536
Date Filed: 05/09/2017
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
In this civil action filed pursuant to 42 U.S.C. § 1983, the Americans with
Disabilities Act, and the Rehabilitation Act, Herbert Darrell Hay, Texas prisoner
# 263672, challenges two orders entered by the district court. In one of the orders,
the district court denied Hay’s motion for service of process upon the Texas Board
of Criminal Justice. We lack jurisdiction over that non-final interlocutory order
because the district court did not certify it for appeal under 28 U.S.C. § 1292(b).
Therefore, Hay’s appeal of that ruling is dismissed. The other order denied Hay’s
motion for a preliminary injunction, and we do have jurisdiction to review that
ruling. 28 U.S.C. § 1292(a)(1).
The denial of a preliminary injunction is reviewed for an abuse of discretion.
White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). A movant for a preliminary
injunction must demonstrate each of the following: (1) a substantial likelihood of
success on the merits; (2) a substantial threat that failure to grant the injunction
will result in irreparable injury; (3) the threatened injury outweighs any damage
that the injunction will cause to the adverse party; and (4) the injunction will not
have an adverse effect on the public interest. Byrum v. Landreth, 566 F.3d 442,
445 (5th Cir. 2009). “The denial of a preliminary injunction will be upheld where
the movant has failed sufficiently to establish any one of the four criteria.” Black
Fire Fighters Ass’n v. City of Dallas, 905 F.2d 63, 65 (5th Cir. 1990) (emphasis in
Hay asserts that the district court gave insufficient reasons for denying the
motion for a preliminary injunction. In denying the preliminary injunction, the
district court determined that Hay had failed to meet his burden of proof with
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 05/09/2017
respect to each of the four pertinent factors, but found this to be the case
“particularly as to showing a substantial threat of irreparable injury or a
substantial likelihood of success on the merits.” These reasons, though brief, allow
us to understand the basis for the denial of relief and are sufficient to satisfy
Federal Rule of Civil Procedure 52(a). See Burma Navigation Corp. v. Reliant
Seahorse MV, 99 F.3d 652, 657 (5th Cir. 1996).
Liberally construed, Hay’s brief challenges only the determinations
regarding irreparable injury and the likelihood of success on the merits; he does
not address the other two Byrum factors. Because Hay has not shown he meets
each of the four prerequisites for a preliminary injunction, he has not shown the
district court abused its discretion in denying his motion. See Black Fire Fighters
Ass’n, 905 F.2d at 65.
Finally, Hay asserts the district court erred by not holding an evidentiary
hearing on his request for injunctive relief. No hearing was necessary here where
the motion was decided solely on the facts and evidence as presented by Hay. See
Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996); Parker v. Ryan, 959
F.2d 579, 584 (5th Cir. 1992). The denial of the preliminary injunction is affirmed.
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION;
AFFIRMED IN PART.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?